PHILIP JOHENNING and JOHN S. ROWE v. TOWN OF MILTON, JOSEPH PRONDAK, in his capacity as BUILDING INSPECTOR for the TOWN OF MILTON, THE PLANNING BOARD for the TOWN OF MILTON, ALEXANDER WHITESIDE, EMILY KEYES INNES, EDWARD L. DUFFY, BRYAN FURZE and MICHAEL E. KELLY, as they are MEMBERS of the PLANNING BOARD for the TOWN OF MILTON, F. JOSHUA OLDFIELD, MARGARET T. OLDFIELD A/K/A MARGARET T. LAING and THAYER NURSERY CORPORATION.

MISC 14-487844

September 1, 2015

Norfolk, ss.

SCHEIER, J.

DECISION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT ON COUNTS I AND II OF PLAINTIFFS' COMPLAINT.

This action involves a two-count challenge to a zoning amendment (Amendment) adopted by the Town of Milton (Town) concerning landscaping businesses within its borders. The Amendment adds a new section to the Milton Zoning Bylaws (Bylaws) granting landscaping businesses meeting certain requirements the right to apply for a special permit to conduct landscaping services incidental to their nursery businesses. After recommendations from both the Planning Board (Board) and the Towns Warrant Committee, Town Meeting approved the Amendment with the requisite two-thirds vote, and it was subsequently approved by the Attorney General. Defendant Thayer Nursery Corporation (Thayer) qualifies as such a business and has applied for a special permit under the Amendment. Plaintiffs are abutters to Thayer's business, which is located at 270 Hillside Street in Milton (Locus). There have been numerous lawsuits among the parties over many years, all involving Thayers use of Locus.

Under G. L. c. 240 § 14A, the Land Court has exclusive jurisdiction to determine and declare the validity of a zoning provision, or the extent to which it applies to a specific property. Such a case may be brought by the owner of a freehold estate who has standing. Harrison v. Town of Braintree, 355 Mass. 651 , 654-655 (1969). If the court finds the provision is invalid under G. L. c. 40A (The Zoning Act), it may invalidate the provision. Alternatively, if the challenge is to the provisions applicability to a particular property, the court may determine that the provision, although valid, may not be applied to the property in question.

Plaintiffs challenge in this case is to the validity of the Amendment itself. In Count I Plaintiffs allege, pursuant to G. L. c. 240 § 14A, that the Amendment is invalid because it constitutes spot zoning and violates the uniformity provisions set forth in Section 4 of the Zoning Act. In Count II, Plaintiffs seek declaratory relief under G. L. c. 231A that the Amendment is null and void. [Note 1] Plaintiffs filed a Motion for Summary Judgment on May 15, 2015. All municipal defendants (hereinafter, Milton Defendants) [Note 2] filed a Cross-Motion for Summary Judgment, combined with their opposition to Plaintiffs Motion for Summary Judgment, on May 20, 2015, seeking dismissal of Plaintiffs' case. Thayer filed an opposition to Plaintiffs Motion for Summary Judgment on May 20, 2015. A hearing was held June 18, 2015, at which all parties were heard.

The summary judgment record includes the Bylaws, affidavits of Philip Johenning, John S. Rowe, and Matthew J. Dunn, Esq., on behalf of Plaintiffs; affidavits of William Clark, Director of Planning and Community Development for the Town, and Susan Galvin, Milton Town Clerk (and keeper of the records), to which are attached exhibits, on behalf of Defendants. [Note 3]

I. Summary Judgment Standard

Rule 56(c) of the Massachusetts Rules of Civil Procedure . . . provides that a judge shall grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Attorney General v. Bailey, 386 Mass. 367 , 370-71 (1982) (citations omitted). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue of fact and that the record entitles it to judgment as a matter of law. Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706 , 711 (1991). Evidence submitted is viewed in the light most favorable to the non-moving party. Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).

When faced with cross-motions, as is the case here, the court must analyze the parties' legal positions at the summary judgment stage guided by which party has the burden on the issues before the court. Plaintiffs seek a declaration the Amendment is invalid, and carry the burden of affirmatively demonstrating the absence of triable issues of fact and their entitlement to judgment as a matter of law. Lev v. Beverly EnterprisesMassachusetts, Inc., 457 Mass. 234 , 237 (2010). This case is ripe for summary judgment on the issue of the Amendment's validity and may be decided based on applicable law. The following material facts are not in dispute:

1. Defendant Town is a duly incorporated municipality in the Commonwealth of Massachusetts, with a usual place of business located at Milton Town Hall, 525 Canton Avenue in Milton.

2. Thayer is a Massachusetts corporation with a principal place of business located at Locus.

3. Plaintiffs together are the owners of a residential property abutting Locus.

4. The Town originally adopted Bylaws on February 10, 1938, dividing Milton into nine (9) classes of zoning districts. The non-municipal parties properties are located within the same Residence AA zoning district.

5. On January 6, 2014, the Town Clerk received and accepted for filing a Citizens Petition (Petition) signed by more than ten registered voters to amend Section III of the Bylaws by adding a subsection to the Bylaws titled Agricultural/Nursery/Landscaping Development.

6. The Board conducted three sessions of a public hearing on the Petition on February 13, February 27, and March 13, 2014.

7. On March 5, 2014, Thayers counsel presented the Petition at a Warrant Committee hearing. Alexander Whiteside (Whiteside) appeared at this meeting and discussed the Petition. The minutes identify Whiteside as Board chair, but it is not clear from the record if he was introduced in his official capacity.

8. On March 13, 2014, the Board concluded the public hearing on the Petition. At this session, Whiteside presented a proposed re-draft of the Petition. [Note 4]

9. On March 19, 2014, the Warrant Committee held a second public hearing on the Petition. Whiteside appeared at this hearing and discussed it.

10. A revised Petition was submitted to the Town Clerk on March 19, 2014. This revised Petition contained the final revisions and represented the Petition as subsequently approved by the Board and the Warrant Committee and incorporated into the Amendment eventually adopted at Town Meeting.

11. On March 21, 2014, the Towns Board of Registrars certified the 140 signatures on the Final Petition to the Town Clerk as the names of qualified voters from this town as well as the district for which [the Final Petition] is made.

12. On April 23, 2014, the Board held its one and only public hearing on the Final Petition, and voted to recommend that the Town approve the Final Petition as an amendment to the Bylaws.

13. On May 1, 2014, the Warrant Committee also voted to recommend to the Town that it vote in favor of the Final Petition at Town Meeting.

14. At a Special Town Meeting on May 5, 2014, the Final Petition, now the Amendment, was presented as Article 2 and approved by the requisite two-thirds vote, thereby amending the Bylaws by adding a new subsection (K) to Section III.A.7, Landscaping Business Use. [Note 5]

15. Pursuant to G. L. c. 40 § 32, the Amendment titled Landscaping Business Use Zoning Amendment was submitted to the Attorney General, together with required certification respecting the requisite two-thirds vote.

16. It was approved by the Attorney Generals Office on September 8, 2014, with the retroactive effective date to May 5, 2014, and notice of the approval was received by the Town Clerk on September 8, 2014.

17. As set forth in the Attorney Generals approval:

[t]he new subsection K authorizes the [Board] to grant a special permit for certain landscaping business uses, in relevant part as follows:

In a residential zone on a lot or lots on which a landscaping business was being conducted in July 2012, the [Board] may grant a special permit for landscaping business use on such lot or lots provided that the applicant or applicants or their predecessors in interest on that date held a special permit or use variance issued by the Board of Appeals pursuant to Section III.A.4 and or [sic] 6 with regard to all or part of any such lot. The special permit shall satisfy all the requirements specified in this Subsection and may contain other requirements, terms and conditions deemed necessary or appropriate by the [Board.]

The introductory section is followed by several paragraphs setting forth the procedure and criteria of the special permit process in detail.

18. On or about October 21, 2014, Thayer submitted an application to the Planning Board for a special permit made possible through the Amendment. [Note 6] That application was pending as of the date of the hearing in this case.

* * * * * *

II. Presumption in Favor of the Towns Bylaws

General Laws c. 40A, § 5 authorizes municipalities to amend, add, or repeal zoning ordinances and bylaws in the manner prescribed therein. "Zoning has always been treated as a local matter. The creation and modification of zones are matters of municipal legislation." Lanner v. Bd. of Appeal of Tewksbury, 348 Mass. 220 , 228 (1964) (citation omitted). "Every presumption is to be made in favor of the amendment and its validity will be upheld unless it is shown beyond reasonable doubt that it conflicts with [G. L. c. 40A]. Vagts v. Superintendent & Inspector of Bldgs. of Cambridge, 355 Mass. 711 , 713 (1969), quoting Lanner, 348 Mass. at 228. [Note 7] While "[a] zoning ordinance or by-law will be held invalid if it is unreasonable or arbitrary, or substantially unrelated to the public health, safety, convenience, morals or welfare," Natl Amusements, Inc. v. Boston, 29 Mass. App. Ct. 305 , 309-310 (1990), the party challenging the zoning amendment has the burden of proving "facts which compel a conclusion that the question whether the amendment falls within the enabling statute is not even fairly debatable." Crall v. Leominster, 362 Mass. 95 , 103 (1972). Therefore, in the context of this summary judgment proceeding, Plaintiffs may prevail only if they demonstrate the validity of the Amendment is not even fairly debatable. Conversely, Defendants are entitled to summary judgment if Plaintiffs fail to satisfy their heavy burden.

In light of the arguments and the record presented by all parties and for the reasons below, this court hereby denies Plaintiffs' Motion for Summary Judgment and grants Milton Defendants' Cross-Motion for Summary Judgment. This court concludes the Amendment was a valid exercise of the local zoning power by the Town of Milton and does not violate the uniformity provisions of G. L. c. 40A, § 4.

Beginning in the 1960s, landscaping services in the Town were considered an incidental and minor part of nursery businesses overall, and were regulated using the special permit procedures of the Bylaws. However, over the past fifty years, these landscaping services have transformed into major revenue producers for their respective nurseries, and significantly increased potential adverse effects on neighboring residential properties. The Town has grappled with the best way to balance these competing interests, as demonstrated by the heated debate surrounding the Amendment. [Note 8]

The Amendment allows ongoing landscaping businesses in Milton to continue operating in residential zones, provided the following requirements are met: (i) the business must be situated in a residential zone, (ii) it must have been in operation in July 2012, and (iii) the applicant must have had a special permit or use variance to operate the landscaping business. Furthermore, the Amendment permits issuance of an initial special permit of three years only upon fulfillment all of the requirements, terms, and conditions mandated by the Bylaws, the special permit and any other conditions imposed by the Board. A business may apply for a renewal of its special permit for one or more additional terms of five years, and the special permit may be revoked for any material violation established after a hearing. The Amendments stated intent and purpose is to make the physical layout and the day-to-day operations of each such landscaping business reasonably compatible with the interests of abutters and nearby residents and their rights to reasonable quiet and enjoyment of their properties.

III. The Amendment Does Not Violate the Uniformity Provision of G. L. c. 40A, § 4

G. L. c. 40A, § 4 requires, in relevant part, [any] ordinance or by-law which divides cities and towns into districts shall be uniform within the district for each class or kind of structures or uses permitted. Essentially, all zoning districts must be uniform within a town: all land in similar circumstances should be treated the same, so that if anyone can go ahead with a certain development, then so can everyone else. SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101 , 107 (1984) (citation omitted).

Plaintiffs allege the Amendment does not subject the property owners in the Towns residential districts to the same restrictions. Instead, they argue it divides properties into two different groups: those eligible for the relief provided under the Amendment due to the fact they operated a landscaping business within a residential district as of July 2012, and those who will never be eligible to apply for the same relief due to timing.

Plaintiffs argue the Amendment cannot be uniformly applied because its parameters are arbitrary and it singles out Thayer's property and business for special treatment. Placing every presumption in favor of the Amendment's validity, this court is unpersuaded Plaintiffs have met their heavy burden to prove the Amendments parameters are arbitrary. See Vagts, 355 Mass. at 713. Plaintiffs failed to present sufficient evidence in support of their view that the Amendment arbitrarily divides property owners in the Town's residential districts into two groups. On the other hand, the Town has presented evidence that it has a basis in delineating the groups and defining the parameters set forth in the Amendment. Most importantly, the requirement that the landscaping businesses have to have been in operation in July 2012 was chosen to reflect a 2012 Land Court decision which invalidated landscaping uses that had been in operation throughout the Town for many years. [Note 9] The Lydon case put in question the legality of several longstanding nurseries in Town, and catalyzed discussion at hearings about how best to balance the desire to maintain the local businesses while protecting the residential neighborhoods in which they have long been located. The Towns desire to address these issues through the Amendment, coupled with the presumption of validity for the Amendment, establishes the reasonableness of the Amendment. Id. Plaintiffs have not established that the Amendment was not enacted for the public welfare. See Bd. of Appeals of Hanover v. Hous. Appeals. Comm., 363 Mass. 339 , 362 (1973).

IV. The Amendment Does Not Constitute Impermissible Spot Zoning

Plaintiffs next argue the Amendment constitutes impermissible spot zoning. Spot zoning occurs where one property has been singled out for treatment less onerous than that imposed upon other indistinguishable properties, designed solely for the economic benefit of the owner of the property receiving special treatment, and is not in accordance with a well considered plan for the public welfare." Board of Appeals of Hanover, 363 Mass. at 362 (italics added). Plaintiffs contend the Amendment was adopted to confer an economic benefit on Thayer and the Town failed to conduct studies or assessments on the Amendment's effects on the Town before passing it.

It is well settled in Massachusetts that a zoning ordinance or amendment that leads to the private profit or advantage of a property owner will not be held invalid if it is enacted in accordance with the general welfare of the town. Pierce v. Wellesley, 336 Mass. 517 , 522 (1957). The validity of a zoning amendment does not hinge on the motives of its supporters. W. R. Grace & Co.- Conn v. Cambridge City Council, 56 Mass. App. Ct. 559 , 568 (2002). A court should not strike down a legislative decision based upon the towns alleged motives in enacting it, if the decision is otherwise justified. Andrews v. Amherst, 68 Mass. App. Ct. 365 , 368 (2007). As stated above, Plaintiffs have failed to provide any evidence to meet their burden of establishing it is not even fairly debatable that the Amendment is not in accordance with the general welfare. Furthermore, even if ultimately Locus is the only property in Milton to economically benefit from this Amendment, this alone does not render the Amendment invalid. See Pierce, 363 Mass. at 522.

While Plaintiffs allege the Town did not conduct the requisite inquiries, studies or assessments, the record proves otherwise. The Amendment began as a Citizen's Petition that eventually would be recommended by both the Board and Warrant Committee. Milton residents voiced their concerns at four public hearing sessions of the Board and the Amendment was significantly changed to reflect and accommodate those concerns to some extent. Based on the undisputed facts concerning the process of the Amendment's adoption, the Town could have reasonably elected to pass this Amendment to keep landscaping businesses in operation through a special provision outlined by the Bylaws. It is reasonable that the Town has determined allowing longstanding local landscaping businesses to continue operating in Milton is in accordance with the public welfare. There is a presumption in favor of the Amendment's validity, and Plaintiffs have failed to overcome that presumption. See Board of Appeals of Hanover, 363 Mass. at 362.

Plaintiffs further argue the Amendment is not part of a general reevaluation or realignment of the zoning plan of the Town, pointing to Beal v. Bldg. Commr of Springfield, 353 Mass. 640 (1968) for support. This argument is unavailing and unpersuasive because the
record demonstrates the Town decided to amend its Bylaws to legitimize uses in existence and thought to have been legally allowed prior to the 2012 Land Court Decision. In recognition of the tensions and problems inherent in having commercial uses alongside residential uses, the Amendment includes provisions to protect residents from the effects of allowed uses and empowers the Board as the special permit granting authority, to fashion protective conditions within the special permitting process. Under the Amendment, the Boards initial special permit is for a three-year period to allow for the Board to take a new look at a landscaping operation after that period, before entertaining a request for an extension of five years. The record establishes that the Town has been dealing with the co-location of landscaping businesses for many years, and the Amendment can be reasonably understood to be a reevaluation of the Town's acceptance of such businesses.

Acting through its Special Town Meeting, the Town has chosen to keep landscaping a part of its community and has done so by amending its Bylaws. It can reasonably be understood to have adopted this Amendment to realign and restore the Town to a state in which landscaping is allowed in a limited fashion, with protective conditions in place so the local neighborhood interests are recognized. See Beal, 353 Mass. at 644.

V. The Amendment Does Not Violate the Special Permit Provisions of G. L. c. 40A, § 9.

Plaintiffs also argue the Amendment should be invalidated because it improperly utilizes the special permit process to corrupt the general purpose and intent of the Bylaws. This court finds the Town is not using the special permit process in a manner inconsistent with G. L. c. 40A, § 9. The Amendment includes provisions that limit landscaping businesses and safeguard Milton residents. Such limitations and safeguards are in accordance with G. L. c. 40A § 9, and must be considered in all special permit application processes before the Board.

VI. Milton Defendants Are Not Judicially Estopped from Arguing in Support of the Amendment

Plaintiffs argue the Milton Defendants have changed their positions regarding landscaping businesses from positions taken in previous cases in Superior Court, and should be judicially estopped from doing so. Judicial estoppel is an equitable doctrine that precludes a party from asserting a position in one legal proceeding that is contrary to a position it had previously asserted in another proceeding. Blanchette v. School Comm. of Westwood, 427 Mass. 176 , 184 (1998). The purpose of the doctrine is to prevent the manipulation of the judicial process by litigants. Canavan's Case, 432 Mass. 304 , 308 (2000). Two fundamental elements are widely recognized as necessary for judicial estoppel. First, the position being asserted in the litigation must be directly inconsistent, meaning mutually exclusive of the position asserted in a prior proceeding. Otis v. Arbella Mut. Ins. Co., 443 Mass. 634 , 640 (2005), quoting Alt. Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 30-31 (1st Cir. 2004). Second, the party must have succeeded in convincing the court to accept its prior position. Otis, 443 Mass. at 641. It is the court's discretion to use this doctrine, and should only be invoked to safeguard the integrity of the courts by preventing parties from improperly manipulating the machinery of the judicial system. Id. quoting Alt. Sys. Concepts, Inc., 374 F.3d at 33.

This court disagrees that the Milton Defendants have taken positions in this lawsuit that are inconsistent with the enforcement cases they have brought before the Superior Court. On June 10, 2014, the Norfolk Superior Court (Wilson, J.), granted the Town of Milton's Emergency Motion for a Preliminary Injunction enjoining Thayer from engaging in commercial activities that the Zoning Board of Appeals had prohibited in a September 26, 2013 decision. Although it is true that in that case the Town sought to enforce its decision against Thayer, it is not inconsistent with the Towns current position. In the Superior Court action, the Town took the position that Thayer was not in compliance with the then-existing Bylaws because it was conducting certain landscaping activities which the 2012 Land Court Decision had determined were not allowed. In this case, the Town is taking a position that recognizes that the Bylaws have changed, but it is still seeking to defend its local regulation, as adopted by town meeting. The integrity of the court is not in jeopardy in this situation, and therefore judicial estoppel is not appropriate nor warranted. See Alt. Sys. Concepts, Inc., 374 F.3d at 33. The Milton Defendants have consistently defended the Towns Bylaws, which changed over time in accordance with the procedural requirements of The Zoning Act.

VII. Conclusion

Under Count II, this court finds and rules the Amendment does not constitute spot zoning or violate the uniformity provisions of G. L. c. 40A, § 4. The record demonstrates the validity of the Amendment is at least fairly debatable, and well within the prerogative of the special town meeting vote through which it was adopted. Thus, the presumption afforded to the Town in favor of the Amendment stands.

Accordingly, this court DENIES Plaintiffs' Motion for Summary Judgment and GRANTS the Milton Defendants' Cross-Motion for Summary Judgment. The Amendment was a valid exercise of the Towns legislative authority, and the Plaintiffs' Complaint will be DISMISSED, with prejudice.

Judgment to issue accordingly.

FOOTNOTES

[Note 1] As required under G. L. c. 231A, § 8, Plaintiffs gave notice of this action to the Attorney General, but the Attorney General has not appeared.

[Note 2] The named municipal defendants include the Town, Joseph Prondak in his capacity as Building Inspector for the Town, and the Board and its members.

[Note 3] On May 29, 2015, Plaintiffs filed a motion to strike paragraphs 11 and 12 from the affidavit of William Clark as unsubstantiated personal opinion, which was opposed and briefly argued at the summary judgment hearing. Also at the hearing, Plaintiffs counsel orally moved to strike paragraph 18 from the affidavit of Margaret Oldfield. The motions to strike are DENIED.

[Note 4] The particulars of Whitesides involvement at these hearings remain in dispute. Plaintiffs allege Whiteside prepared this draft in his individual capacity, privately and in conjunction with Thayers counsel. The Milton Defendants argue that Whiteside acted in accordance with his role as a member of the Board, making recommendations and revising the proposed amendment before sending it to Town Meeting. The minutes of the public hearings referenced in fact paragraphs 69 are included in the summary judgment record. Although Plaintiffs dispute that the minutes fully reflect the discussions held at those hearings, the minutes speak for themselves to establish the public meetings occurred and that Whiteside was in attendance and participated. The March 13, 2014 Board meeting minutes state Chairman Whiteside presented proposed revisions to the zoning language to accommodate both sides of the issue . . . [he] expressed his view that the revisions to the article which he proposed were so extensive so as to be beyond the scope of the original Article he was of the opinion that, if the revised article were to be put before the town meeting, a new public hearing and prior notice would be necessary . . .

[Note 5] See G. L. c. 40A, §5 ([n]o zoning ordinance or by-law or amendment thereto shall be adopted or changed except by . . . a two-thirds vote of a town meeting[.]).

[Note 6] Whether Thayer Nursery is the only property qualified to apply for a special permit under the Amendment, or is one of several qualified properties, remains a fact in dispute. The Milton Defendants maintain the Amendment applies to at least five other properties in Milton, while Thayer asserts at least fifteen other properties are so qualified. Plaintiffs assert it applies only to Thayer. A determination as to how many properties fall within the Amendments purview is ultimately unnecessary for purposes of this decision. Even if the Amendment applies only to Locus, the court finds that it does not violate the Zoning Act.

[Note 7] Vagts was decided under the predecessor to Chapter 808 of the Acts of 1975, which became The Zoning Act codified as G. L. c. 40A.

[Note 9] See Lydon v. Town of Milton Bd. of Appeals, 20 LCR 251 (2012) (Misc. Case No. 399701) (Sands, J.) (annulling a use variance granted by the ZBA for the operation of a landscaping business on a residential lot. The case did not involve Locus or Thayer.)